Public comment topics and process

The Commission will invite public comment in stages throughout the term of the hearings.

The Commission will invite comments on the topics covered in each hearing session. The FTC will issue a news release before each session to inform the public of the agenda, the date and location, and instructions on submitting comment.

The Commission will also invite public comment upon completion of the entire series of hearings.

Through August 20, 2018, the Commission accepted public comment on the topics identified in the announcement. Each topic description includes issues of particular interest to the Commission, but comments need not be restricted to these subjects.

The Commission is especially interested in new empirical research that indicates (or contraindicates) a causal relationship with respect to any of the topics identified for comment. Upon review and consideration of a public comment highlighting such research, the Commission may request the voluntary sharing of the data and models underlying the comment, in accordance with general principles of peer review of social scientific inquiry, and consistent with confidentiality or other limitations on the sharing of such data.

Some recent econometric studies have concluded that when investors hold stock in competing firms, competition may be reduced among those commonly held competing firms. The Commission invites public comment on this issue, including on the questions listed below.?

What is the state of the econometric and qualitative evidence for and against the proposition that such common ownership reduces competition?

To what extent do the results suggest that this harm to competition extends to concentrated industries more generally??

Is any likely harm limited to concentrated industries or does it extend to holdings in unconcentrated industries?

What are the potential mechanisms by which such stock holdings would lead to anticompetitive harm, and how likely are they to lead to anticompetitive results?

To what extent do institutional investors have the incentive and opportunity to affect corporate governance, particularly regarding competitive decision-making? How is such influence exercised?

What enforcement and policy responses should be adopted in light of the existing evidence?

What additional research should be undertaken on this issue?

What data would be most useful to answer the question of whether common ownership reduces competition in concentrated industries?

To further its consideration of these issues, the agency seeks public comment on the questions listed below, and it welcomes input on other related topics not specifically listed here.

Background on Algorithms, Artificial Intelligence, and Predictive Analytics, and Applications of the Technologies

What features distinguish products or services that use algorithms, artificial intelligence, or predictive analytics? In which industries or business sectors are they most prevalent?

What factors have facilitated the development or advancement of these technologies? What types of resources were involved (e.g., human capital, financial, other)?

Are there factors that have impeded the development of these technologies? Are there factors that could impede further development of these technologies?

What are the advantages and disadvantages for consumers and for businesses of utilizing products or services facilitated by algorithms, artificial intelligence, or predictive analytics?

From a technical perspective, is it sometimes impossible to ascertain the basis for a result produced by these technologies? If so, what concerns does this raise?

What are the advantages and disadvantages of developing technologies for which the basis for the results can or cannot be determined? What criteria should determine when a “black box” system is acceptable, or when a result should be explainable?

Common Principles and Ethics in the Development and Use of Algorithms, Artificial Intelligence, and Predictive Analytics

What are the main ethical issues (e.g., susceptibility to bias) associated with these technologies? How are the relevant affected parties (e.g., technologists, the business community, government, consumer groups, etc.) proposing to address these ethical issues? What challenges might arise in addressing them?

Are there ethical concerns raised by these technologies that are not also raised by traditional computer programming techniques or by human decision-making? Are the concerns raised by these technologies greater or less than those of traditional computer programming or human decision-making? Why or why not?

Is industry self-regulation and government enforcement of existing laws sufficient to address concerns, or are new laws or regulations necessary?

Should ethical guidelines and common principles be tailored to the type of technology involved, or should the goal be to develop one overarching set of best practices?

What are the main consumer protection issues raised by algorithms, artificial intelligence, and predictive analytics?

How well do the FTC’s current enforcement tools, including the FTC Act, the Fair Credit Reporting Act, and the Equal Credit Opportunity Act, address issues raised by these technologies?

In recent years, the FTC has held public forums to examine the consumer protection questions raised by artificial intelligence as used in certain contexts (e.g., the?2017 FinTech Forum?on artificial intelligence and blockchain and the?2011 Face Facts Forum?on facial recognition technology). Since those events, have technological advancements, or the increased prevalence of certain technologies, raised new or increased consumer protection concerns?

What roles should explainability, risk management, and human control play in the implementation of these technologies?

What choices and notice should consumers have regarding the use of these technologies?

What educational role should the FTC play with respect to these technologies? What would be most useful to consumers?

Does the use of algorithms, artificial intelligence, and predictive analytics currently raise particular antitrust concerns (including, but not limited to, concerns about algorithmic collusion)?

What antitrust concerns could arise in the future with respect to these technologies?

Is the current antitrust framework for analyzing mergers and conduct sufficient to address any competition issues that are associated with the use of these technologies? If not, why not, and how should the current legal framework be modified?

To what degree do any antitrust concerns raised by these technologies depend on the industry or type of use?

Other Policy Questions

How are these technologies affecting competition, innovation, and consumer choices in the industries and business sectors in which they are used today? How might they do so in the future?

How quickly are these technologies advancing? What are the implications of that pace of technological development from a policy perspective?

How can regulators meet legitimate regulatory goals that may be raised in connection with these technologies without unduly hindering competition or innovation?

Are there tensions between consumer protection and competition policy with respect to these technologies? If so, what are they, and how should they be addressed?

What responsibility does a company utilizing these technologies bear for consumer injury arising from its use of these technologies? Can current laws and regulations address such injuries? Why or why not?

The hearings will examine the role that data play in competition and innovation and will also consider the antitrust analysis of mergers and firm conduct where data is a key asset or product.

The Commission invites public comment on these issues, including the questions listed below. If any entity has provided funding for research, analysis, or commentary that is included in a submitted public comment, such funding and its source should be identified on the first page of any submitted comment.

What is “big data”? Is there an important technical or policy distinction to be drawn between data and big data?

How have developments involving data – data resources, analytic tools, technology, and business models – changed the understanding and use of personal or commercial information or sensitive data?

Does the importance of data – or large, complex data sets comprising personal or commercial information – in a firm’s ordinary course operations change how the FTC should analyze mergers or firm conduct? If so, how? Does data differ in importance from other assets in assessing firm or industry conduct?

What structural, behavioral or conduct remedies should the FTC consider when remedying antitrust harm in a market or industry where data or personal or commercial information are a significant product or a key competitive input?

Are there policy recommendations that would facilitate competition in markets involving data or personal or commercial information that the FTC should consider?

Do the presence of personal information or privacy concerns inform or change competition analysis?

How do state, federal, and international privacy laws and regulations, adopted to protect data and consumers, affect competition, innovation, and product offerings in the United States and abroad?

Should the U.S. antitrust agencies publish Vertical Merger Guidelines? What guidance should they provide regarding the assessment of the competitive effects of vertical mergers, including the substantive theories of competitive harm and the treatment of transaction-related efficiencies? Under what conditions, if any, should the guidelines recognize a presumption of anticompetitive harm? What showing should be required to overcome such a presumption? Under what circumstances, if any, should behavioral remedies be accepted to remedy the likely anticompetitive effects of vertical mergers?

Is the “consumer welfare standard” the appropriate standard for evaluating compliance with the antitrust laws? What are alternative frameworks with which to evaluate compliance with the antitrust laws? What are their strengths and weaknesses? Is there empirical support for preferring one standard instead of another standard?

This session reschedules the hearing session originally postponed on September 14 due to inclement weather.

Is there a role for the government in advancing or supporting innovation?

What is the importance of intellectual property – all forms – in advancing, protecting, and supporting innovation? Does it differ because of industry-specific or other market-based factors, or because of the form of intellectual property?

How does modern economic analysis and empirical literature view the relationship between intellectual property and innovation, and the role of government in advancing and supporting innovation? Are there differences that depend on the type of intellectual property, and the protections offered for that intellectual property?

How can the FTC use its enforcement and policy authority to advance innovation? What factors should the FTC consider in attempting to achieve this objective?

What are emerging trends in patent quality and litigation issues? Should these trends influence the FTC’s enforcement and policy agenda?

How should the current status of copyright law and current business practices influence the FTC’s enforcement and policy agenda?

Archive

The comment period for these topics has closed, but submitted comments are available for review below. Commenters were invited to address one or more of the following topics generally, or with respect to a specific industry, such as the health care, high-tech, or energy industries. If an interested party wishes to make general comments about the hearings, we encourage filing a comment in response to any of the topics currently open.

whether the consumer welfare standard is the appropriate standard for antitrust law and, if not, whether other standards, including a total welfare standard, should be preferred;

whether and, if so, how antitrust law should take into account additional public policy concerns such as income or wealth distribution, the bargaining power of large entities, or labor and employment considerations;

the accuracy and relevance of recent research identifying increases in concentration across broadly defined economic sectors, as well as some recent studies suggesting changes in price-cost margins over time, and what influence, if any, this existing research should have on antitrust law and policy;

what are the highest priority reforms that would improve U.S. antitrust enforcement policy;

whether there are material differences between antitrust/competition policy and law in the United States and the rest of the world, and the effects of such differences;

whether U.S. antitrust agencies should be involved in curbing the application to U.S. firms of foreign competition laws that may be inconsistent with international norms, and whether antitrust agencies should seek the assistance of the U.S. trade and foreign policy agencies in preventing or rectifying such situations;

whether antitrust agencies and the courts pay too little or too much attention to the error costs of more or less antitrust enforcement;

whether antitrust agencies and courts should balance procompetitive and anticompetitive effects across relevant markets in the analysis of mergers and acquisitions;

the evidence of monopsony power in the economy, and whether it is more likely or prevalent in some sectors or markets;

whether, and how, mergers create buyer power; if so, whether and how this is distinct from monopsony power; and what harms buyer power or monopsony power may cause to sellers and/or consumers in downstream markets; and

whether the antitrust agencies give sufficient recognition to the potential for buyer power acquired through a merger to enhance competition by enabling the parties to exercise countervailing power, or to the potential for existing buyer power to inhibit merging sellers from exercising market power.

What are the defining characteristics of multi-sided platforms? Is there a way to distinguish between multi-sided and single-sided businesses? Are any adjustments to antitrust analysis necessary to account for any special characteristics of multi-sided businesses?

How should the courts and agencies define relevant antitrust markets and measure market power for multi-sided platform businesses?

What is the relevance of network effects (direct and indirect) in multi-sided platform markets?

How should the courts and agencies evaluate exclusionary conduct by firms competing in multi-sided platform markets, including predatory pricing, vertical restraints, most-favored nation clauses, and actions to undermine rivals who depend on platform infrastructure?

Are there unique procompetitive justifications for these types of conduct by firms competing in multi-sided platform markets?

What is the relevant legal precedent for evaluating antitrust concerns related to multi-sided platform businesses?

Antitrust in Labor Markets (Oct. 16):

Is a lack of competition among employers a significant contributor to observed macroeconomic trends in labor markets, such as the declining labor share and/or real wage stagnation? What are other explanations for these trends?

How should the agencies approach defining relevant labor markets for purposes of antitrust analysis? What (if any) reliable evidence is available on the existence and effect of employer concentration in properly defined labor markets?

Does available evidence suggest a causal relationship between employer concentration and labor market outcomes, such as wage? Does this evidence suggest a change in antitrust enforcement is needed?

Should the agencies and courts apply the consumer welfare standard to the analysis of monopsonistic labor markets in which firms are buyers and workers are sellers?

How should the agencies and courts resolve cases where evidence suggests output in the product market is likely to increase but employment and wages are likely to decline because of reduced competition in a properly defined labor market?

the identification of new developments in markets and in business-to-business or business-to-consumer relationships;

the benefits and costs associated with the growth of international competition and consumer protection enforcement regimes; and

the advisory and advocacy role of the FTC regarding enforcement efforts by competition and consumer protection agencies outside the United States, when such efforts have a direct effect on important U.S. interests.

3. The identification and measurement of market power and entry barriers, and the evaluation of collusive, exclusionary, or predatory conduct or conduct that violates the consumer protection statutes enforced by the FTC, in markets featuring “platform” businesses

Of particular interest to the Commission:

whether the platform business model has unique implications for antitrust and consumer protection law enforcement and policy; and

whether and how the presence of “network effects” should affect the Commission’s analysis of competition and consumer protection issues in these markets.

6. Evaluating the competitive effects of corporate acquisitions and mergers

Of particular interest to the Commission:

the economic and legal analysis of vertical and conglomerate mergers;

whether the doctrine of potential competition is sufficient to identify and analyze the competitive effects (if any) associated with the acquisition of a firm that may be a nascent competitive threat;

the analysis of acquisitions and holding of a non-controlling ownership interest in competing companies;

the identification and evaluation of the exercise of monopsony power and buyer-power as arising from consolidation;

the identification and evaluation of differentiated but potentially competing technologies, and of disruptive or generational changes in technology, and how such technologies affect competitive effects analysis; and

the adoption and utilization of novel business practices (beyond those addressed in the Commission’s prior guidance and actions) with respect to obtaining or enforcing intellectual property rights, where such practices may be inconsistent with the antitrust laws;

9. The consumer welfare implications associated with the use of algorithmic decision tools, artificial intelligence, and predictive analytics

Of particular interest to the Commission:

the welfare effects and privacy implications associated with the application of these technologies to consumer advertising and marketing campaigns;

the welfare implications associated with use of these technologies in the determination of a firm’s pricing and output decisions; and

whether restrictions on the use of computer and machine learning and data analytics affect innovation or consumer rights and opportunities in existing or future markets, or in the development of new business models.

How to Submit Public Comments

Interested parties may submit written comments on the topics listed above to the FTC. Electronic submission is preferred; comments in paper form are also accepted. FTC staff may use these comments in any subsequent reports or policy papers. Comments should refer to “Competition and Consumer Protection in the 21st Century Hearings, Project Number P181201.” If an interested party wishes to comment on multiple topics, we encourage filing a separate comment for each topic. If an interested party wishes to make general comments about the hearings, we encourage filing a comment in response to Topic 1, using this link. For this stage of the public comment process, comments will be accepted until August 20, 2018.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. If you prefer to file your comment on paper, write “Competition and Consumer Protection in the 21st Century Hearings, Project Number P181201” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue, NW, Suite CC-5610 (Annex C), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street, SW, 5th Floor, Suite 5610 (Annex C), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

Because your comment may be placed on the publicly accessible FTC Website, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else’s Social Security number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential” – as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2) – including, in particular, competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the public FTC Website – as legally required by FTC Rule 4.9(b) – we cannot redact or remove your comment from the FTC Website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

If any entity has provided funding for research, analysis, or commentary that is included in a submitted public comment, such funding and its source should be identified on the first page of any submitted comment.

Visit the FTC Website to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. For this stage of the comment process, the Commission will consider all timely and responsive public comments that it receives on or before August 20, 2018. The FTC Act and other laws that the Commission administers permit the collection of public comments. More information, including routine uses permitted by the Privacy Act, may be found in the FTC’s privacy policy.